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Judgment
P.C. Verma, J.—This writ petition was remanded by the Hon''ble Apex Court vide order dated 03.092004 passed in Civil Appeal No. 5708 of 2004 airing out of SLP NO. 21317 of 2003 directing the High Court to consider the matter on merits after hearing the parties at length.
This writ petition is directed against the illegal attempt of the State Government to evict the petitioners from the premises in question held by the petitioners as owners of the land and also direct the respondents to carry out the public duty and restore the status quo ante and to remove the Board affixed at the property of the petitioners.
The case of the petitioners is that the petitioner''s company is a private limited company having its registered office at Sahibabad, District Ghaziabad. The second petitioner is a shareholder, Debenture holder and Debenture Trustees of the first petitioner. The first petitioner has been in possession for the last more than 50 years of land measuring 64 acres in Sahibabad District Ghaziabad with a total constructed area of over 2,50,000 sqr. Ft. The said land had been given by the Government by way of formal transfer to the petitioner and the petitioner has been in continuous possession of this land since the year 1941. The purpose for which this land was given was for the construction and establishment of Glass Wool and Ceramic Factory. On 8.7.1940, a declaration was made by the Secretary to Government of United Provinces under Sections 6 & 37 of the Land Acquisition Act (hereinafter referred to as the Act) which was published in the Gazette on 13.7.1940 proposing to acquire certain plots of the land in the then District Meerut (since then the District of Ghaziabad). The purpose of acquisition of the said plots was for construction of Glass wares and other factories by Messers Malco Limited, Delhi. Two draft agreements were entered into on behalf of Government of United Provinces and Messers Malco Limited on 20.3.1941 under Section 41 of the Act. It was provided in the notification that the entire compensation for the acquisition of the land had to be paid by Messers Malco Limited and that the Government conveys and grants to Messers Malco Ltd land free from all encumbrances and occupancy rights. It w as to vest forever. The land was to be used by Malco Ltd for the purpose indicated above which had to be completed within a period of three years. The entire compensation for acquisition was paid by Malco Ltd. to the Government of UP which was transferred to the land holders. Thus Messers Malco Ltd became the absolute owners of the land having paid the compensation for the acquisition. The only restriction placed on them was to utilize the land for the purpose indicated in the notification within the stipulated period.
Thereafter, the name of Messers Malco Ltd was changed to Capital Glass Works on 12.12.1944. It appears that the formal deed of transfer could not be executed between the Provincial Government of UP and the Capital Glass Works (previously Malco Ltd) as the purpose for which the land was acquired could not be completed despite extension of time granted by the Government till March 1950. On 1.6.1949 M/s Capital Glass Works Ltd. sold the land acquired and the building etc constructed thereon to M/s Delhi Glass Works Ltd. for a total consideration of Rs. 7.50 lakhs. On 1.11.1950, a formal agreement was executed between the State of UP and Delhi Glass Works Ltd. It is further submitted that this deed of transfer dated 1.11.1950 was a ratification of the sale deed dated 1.6.1940. Delhi Glass Works Ltd completed the purpose for which the land was acquired and set up a Glass Hallow Ware Factory and started production and sale of the said items from the Year 1950.
Thereafter, on 13.6.1956 Delhi Glass Works Ltd transferred the factory''s land and building to M/s Bhagwati Glass Works Pvt. Ltd by two separate sale deeds dated 25.6.1956 and 9.7.1956. The name of M/s Bhagwati Glass Works Pvt. Ltd was thereafter changed to M/s Durga Enterprises Pvt. Ltd with effect from 22.6.1968. On 30.4.1957 mutation was also affected in favour of the petitioner, M/s Durga Enterprises Pvt. Ltd by the Tahsildar of the area.
Thereafter, on 19.3.1959 the petitioner M/s Durga Enterprises Pvt. Ltd wrote a letter to the UP Government requesting that an amendment may be made in the transfer deed dated 1.11.1950 but the said letter remained unattended resulting in a reminder being sent by the petitioner on 17.6.1959. On 28.3.1961 the Addl. Collector, Meerut intimated the petitioner that the Government h ad no objection in allowing to utilize the land surplus to the area covered by its Glass Hollow Wares Factory for other industrial purposes as proposed subject to their entering into a conveyance Deed on the lines of the transfer deed originally executed in favour of M/s Delhi Glass Works Ltd. Thereafter, the petitioner immediately complied with and sent a Draft deed to the Collector, Meerut as required by his letter dated 23.6.1961 and the Collector forwarded the draft deed of conveyance to the Secretary, UP Government for early execution of the aforesaid deed by its letter dated 13.4.1961. The State of UP by letter dated 30.7.1962 requested the petitioner to pay some consideration in lieu of the Government permission for change of the land user. Ultimately, an agreement in pursuance of the permission dated 28.3.1961 was executed only on 22.6.1970 despite the fact that the petitioner had taken all steps necessary and had fulfilled all the obligations which were required of them. In pursuance of the permission granted on 28.3.1961 new additional units which were non existenct 1959 were set up for the manufacturing of glass wool, refractories and S.W. Ceramic Pipes and fitting for the first time by the petitioners on the company''s land. The petitioner has duly implemented the purposes agreed upon of setting up additional new units permitted by the Government of UP by letter of no objection dated 28.3.1961 and the petitioner invested total amount of Rs. 30.50 laksh for the purpose between the year 1956 to 1973.
Thereafter, due to financial losses, labour unrest etc. the company was forced to close down in 1975. The State Government was fully apprised of the situation which had suggested various remedial measures including approaches to be made to PICUP and Financial Institutions for rehabilitation. In the year 1978, majority share holders died which also affected the running of the business. However, in the year 1979 the factory was restarted but due to the orders of the Add. District Magistrate, Ghaziabad dated 15.5.1979 it was again forced to close down. In the circumstances, a proposal for rehabilitation and a scheme for transfer of 30 acres of land was submitted by the petitioner. However, no decision was taken in the matter by the UP Government. In the year 1988, the petitioner proposed to transfer a part of its premises to a Public Sector undertaking, Hindustan Prefab Ltd. However, no decision was intimated to the petitioner by the Government of U.P. Suddenly, on 21.10.1989 after expiry of 30 years and having full knowledge of the setting up of new additional units the State Government issued an order to the petitioner that it had not set up any new unit in terms of the deed within a period of three years after the land was transferred to the petitioner. Thereafter, the respondents by two notices dated 21.10.1989 and 12.10.1990 sought to reenter the said premises pursuant to the reentry clause contained in the Deed of conveyance dated 22.6.1970. The petitioners apprehending their eviction from the land in dispute in pursuance of the notice dated 21.10.1989 issued by the respondent no. 1, filed Civil Misc Writ Petition before this court which was finally disposed of by the division bench of this Court vide order dated 13.11.1990 directing the respondents not to dispossess the petitioners from the premises in dispute except in accordance with law.
Despite the Division Bench order of this Court dated 13.11.1990, once again the respondents in the month of March 1991, started harassing the petitioners and its employees to take over the possession of the said property forcibly in utter disregard of the provisions of law and even the officers from the District Magistrate''s office used to visit the premises of the factory and threatened the petitioners that they will dispossess them from the land in dispute. Thereafter, the petitioners approached the District Magistrate, Ghaziabad and requested vide letter dated 4.4.1991 to ensure that no illegal steps are taken in view of the order passed by this Court. On receipt of the letter dated 4.4.1991, District Magistrate Ghaziabad wrote a letter dated 3.5.1991 to Government of UP bringing to its notice the order passed by this Court dated 13.11.1990 and it was also pointed out by the District Magistrate that the firm was not guilty of violating any of the terms of the transfer deed dated 22.6.1990 and recommended that the matter requires reconsideration. Despite this recommendation, Sub Divisional Magistrate, Ghaziabad visited the premises on 4th September 1991 and threatened to forcibly dispossess the petitioners from the land in dispute. Thereafter, on 7.9.1991 respondents visited the premises and forcibly destroyed the Board of the petitioners and have put up the Board with the following caption'''' YEH BHUMI/BHAWAN UTTAR PRADESH SARKAR KI HAI''''. Hence aggrieved by the arbitrary and excessive action, which is not in accordance with law, this writ petition is being preferred.
A detailed counter affidavit has been filed on behalf of the respondents by the learned Addl. Chief Standing Counsel.
It is contended by learned counsel for the respondents that at the behest of M/s Malco Ltd. the land in dispute was acquired for establishing a glass factory and purposes connected therewith and an agreement dated 20.3.1941 under the provisions of Part VII of the Land Acquisition Act was entered into on 15.4.1941 with an unbroken potent condition that M/s Malco Ltd. will hold and occupy the land and completely utilize it within three years, failing which it was stipulated that it will be lawful for the Governor of State to enter upon the said land and take the possession thereof and the company or any person shall have no objection. Further, M/s Malco Ltd by resolution dated 12.12.1944 changed its name as Capital Glass Works Ltd (hereinafter referred as CGWL) and went in liquidation. In consideration of the financial assistance taken by the CGWL from Bharat Bank Ltd. an irrevocable power of attorney was executed on 22.10.1948 which was registered on 18.11.1948 and pursuant thereto the CGWL through Bharat Bank Ltd. executed a sale deed in favour of M/s Raizada Jagmohan Lal and Ram Kumar Jalan for promotion of their company Delhi Glass Works Ltd. On representation of Delhi Glass Works Ltd., the State of UP vide deed dated 1.11.1950 granted only occupancy rights to Delhi Glass Works Ltd with a condition that Delhi Glass Works Ltd shall use the land for Glass Factory and other allied Industrial purposes and utilize the land within two years and all other conditions contained in the Principal deed remained the same.
It is further contended by learned Addl. Chief Standing Counsel appearing on behalf of the State that vide deeds dated 25.6.1956 and 9.7.1956 Delhi Glass Works sold the entire land measuring 102 bighas 9 biswa and 1 biswansi to M/s Bhagwati Glass Works without obtaining any prior permission from the State Government. The name of M/s Bhagwati Glass Works Ltd was later on changed to M/s Durga Enterprises Pvt. Ltd. It is also contended that these sale deeds are void as the occupancy right granted to hold the land on the condition that it will be developed within three years remained unfulfilled resulting in serious breach and hence the land was got wrongly mutated by M/s Bhagati Glass Works Ltd.
Submission of learned counsel for the respondents is that on the representation of M/s Durga Enterprises Pvt. Ltd., the State Government executed a deed dated 22.6.1970, perusal of which shows that the land is vested in the State of UP as the previous occupancy right holders have failed to utilize the land within three years which resulted in serious breach. Thereafter, the State had taken cognizance of the petitioner''s complete failure to fulfill the conditions contained in the said deeds of occupancy rights and ultimately vide order dated 21.10.1989 passed by the Principal Secretary Industries that 5.76 acres of land has been utilized and the remaining 66.72 acres of land was lying open and vacant and therefore, in view of the breach of specific terms and conditions the possession of the land may be taken. Thereafter, petitioners vide representations dated 13.12.1989 and 14.12.1989 requested the State Government to consider his grievances and not to take possession. However, the Govt. vide its order dated 12.10.1990 rejected the petitioner''s representation for condonation of breach and extension and directed the District Magistrate, Ghaziabad to take possession of the property and as a result thereof the possession was taken over and possession deed was duly signed by the authorities as well as the representative of the petitioner. The petitioner never made a complaint that the possession was forcibly taken and there is no document on record which may support the petitioner''s contentions. Hence, the petitioners have no right against the respondents owner of the land.
To the contrary, learned counsel for the petitioners filed rejoinder affidavit denying the facts stated in the counter affidavit filed by the respondents and further the defence taken in the counter affidavit is a vague and general one as no such law validates or authorizes the admitted dispossession of the petitioners from premises.
Learned counsel for the petitioners reiterated the version as has been made in the writ petition and has contended that the possession over the premises in dispute continues to vest with the petitioners. The alleged paper possession is no possession in the eyes of law nor has it been shown as to how the possession was taken except making a bald allegations that some board was fixed. Till date the petitioners are in possession of the land in dispute.
It is further submitted by the learned counsel for the petitioners that there has been no breach of the terms of the agreements. The purpose for which the land was acquired had been fully complied with and thus there was no question of exercising the right of reentry by the State. In any case, the compensation having been paid by the original company the State had no semblance of ownership right over the land.
Heard learned counsel for the parties and perused the material on record.
At the outset, it is contended on behalf of the respondents that the instant writ petition is not maintainable as the same is barred by the principle of resjudicata on the ground that the petitioners have raised the same pleas and have prayed for the similar reliefs in the earlier writ petition.
Argument is stated to be rejected. The previous writ petition instituted by the petitioners was dismissed as premature. This Court found the apprehension of the petitioners of imminent eviction as unfounded. It, however, protected the petitioners'' interest. This Court restrained the respondents from dispossessing the petitioners except in accordance with law vide order dated 13.11.1990 passed in Civil Misc Writ Petition No. Nil of 1990 (M/s Durga Enterprises Vs. Principal Secretary, Government of UP). The order dated 13.11.1990 is reproduced below:
"The petitioner apprehends that on the basis of the communication dated 12th October, 1990 (Annexure No. 19) of the Principal Secretary, Government of UP, it will be dispossessed forcibly from the premises in dispute.
We direct the respondents not to dispossess the petitioner from the premises in dispute except in accordance with law. With these directions, the petition is disposed of finally.
A copy of this order may be issued to the learned counsel for the petitioner on payment of usual charges within 48 hours."
Obviously, therefore, this Court did not adjudicate the controversy on merits. No issues were decided. Therefore, it is illogical to contend that the aforesaid judgment would operate as resjudicata. The basic ingredients of the principle of resjudicata are totally non existent in this case.
According to Section 11 of the C.P.C., an issue has to be raised or ought to have been raised and the same has been heard and finally decided by such court. But no such issues have been decided. The Court did not at all go into the merits of the controversy.
That apart, the present writ petition is founded on an entirely new cause of action. It is based on illegal trespass made by the respondents on 9.9.1991. The minions of the respondents not only trespassed over the land in dispute but also destroyed the sign board. Instead, they planted their own board inscribing therein the word "YE BHUMI/BHAWAN UTTAR PRADESH SARKAR KI HAI''''. Besides this they have also challenged the legality of the order dated 31.10.1989 passed by the State Government whereby the State Government declared that in view of the breach of condition no. 4 of the lease deed dated 22.6.1970 the possession of the petitioners over the land in dispute has become unauthorized. It asked the petitioners to forthwith return possession of the land in dispute to the State Government. The petitioners have also challenged the validity of news publication dated 12.10.1990 published in Hindi news daily ''''Dainik Hint'' dated 20.12.1990. Through the aforesaid order, the State Government rejected the representation filed by the petitioners on 13.12.1989 and 14.12.1989. They also authorized further action consequent upon such rejection. It also authorized the District Magistrate to obtain possession of the land in dispute.
In view of the foregoing discussions, the contention raised by the respondents cannot be countenanced. It is, accordingly, rejected.
Now, on to the merits of the case. It is contended on behalf of the petitioners that in view of the provisions of Section 41 and 42 of the Land Acquisition Act, the agreements dated 20.3.1941 stand incorporated in the Act itself. They, therefore, become integral part of the statute. They are, therefore, law. Deducing there from, learned counsel for the petitioners has contended that the subsequent lease deeds executed by the State Government in favour of the petitioners and their predecessor are inane and void. They cannot be looked into for any purpose. It is, therefore, relevant to reproduce Section 42 of the Land Acquisition Act, which is hereunder:
Section 42 Publication of agreement : Every such agreement shall, as soon as may be after its execution, be published in the Official Gazette, and thereupon (so far as regards the terms on which the public shall be entitled to use the work) have the same effect as if it had formed part of this Act.
Sustenance to the aforesaid contention is being drawn from the judgment of Hon''ble Supreme Court in the case of Fomento Resorts and Hotels Limited & another Vs. Minguel Martins and others, (2009) 3 SCC page 571. In this Case, Hon''ble Apex Court in paragraph no. 82 declared the law thus:
"In our considered view, neither the State Government nor the Board could allow extension of the hotel building on the acquired land in violation of first part of Clause 4(viii) of agreement dated 26.10.1983 which, at the cost of repetition, we would like to emphasise, has the force of law by virtue of Section 42 of the 1894 Act."
However, learned Addl. Advocate General, appearing on behalf of the State Government in his counter submission placed much capital upon the words used in the two agreements. It may be stated that the language used in the two agreements is uniform. He played upon the word ''''occupancy right''. It is submitted that while interpreting a document; more so, the agreements which is statute. The Court has to cull out the real intention latent in such provision. It cannot interpret the provision by picking up one or two sentences or words out of context and in total seclusion. The agreement has to be interpreted holistically. One has to accord purposive interpretation to such document.
Prefatory clauses as well as clause 3 itself recites that upon the company having made the payment mentioned in paragraph nos. 1 & 2 of these agreements, provincial government in consideration of payments of such compensation money and such costs of acquisition as aforesaid convey and grant the said company the said land free from all encumbrances and occupancy right together with all right as is mentioned and thereto belonging or enjoyed therewith to hold the said land unto the company and the successors forever subject to conditions hereinafter set forth.
The word ''conveys and grant'' and ''hold'' the said land unto the company and his successor forever are pregnant with meaning. They unerringly mirror the true intention of the parties of the agreements. In Mausin Ali and others Vs. State of Madhya Pradesh reported in 1975 (2) SCC 122, Hon''ble Apex Court was called upon to interpret the word grant occurring in a grant made by the ruler of Bhopal the then Bhopal State. In paragraph no. 15 of the said judgement, the Hon''ble Apex Court has held as follows:
"In the widest sense, ''grant'' may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown, e.g., grants of pensions, patents, charters franchise (See Earl Jowtt''s Dictionary of English Law)."
To elaborate further, Hon''ble Apex Court lays down the rule of interpretation of a document in the following terms in paragraph 17 of the said judgment which is reproduced below:
"This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Sovereign is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises. If the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honour of the Sovereign and where two construction''s are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign''s profit. Where, however, two interpretations may be given to the grant, both of which are good, that which is most favourable to the Crown is in many cases preferred (see Halsbury''s Laws of England, 3rd Ed. Vol. 7, Paragraphs 669 and 670 pages 314316)."
Thus, we have to interpret the agreement in the backdrop of the antecedent events. Admittedly, the agreement itself recites that the same has been executed upon payment of entire compensation and costs thereof by predecessor of the petitioners. Undeniably, it represent the purchase price. This is to be so read in the context of Section 41 of the Land Acquisition Act. Acquisition is total expropriation of right of a person and its consequent vesting in the State Government. Thus, for all intents and purposes the acquisition represents the purchase; albeit it is involuntary and in fact, compulsive.
Argument is further fortified by placing reliance upon the judgment of Hon''ble Apex Court in Shyamal Kanti Guha through Lrs and others Vs. Meena Bose 2008 (8) SCC 115 in which the Hon''ble Apex Court has occasioned to interpret the word ''''occupy'' and has observed as follows in paragraph no. 17 of the said judgment which is reproduced as under:
"The meaning of the word `occupy'' should not be read in isolation. The right to occupy is the subject matter of devise. It must be read with the word `absolutely''. Right to occupy as a limited owner and a right to occupy absolutely could not have different meanings. The heirs and legal representatives of Shyamal Kanti Guha and Mrs. Meena Bose were to get the interest in the dwelling house absolutely. If the intention of the testator was otherwise, the question of Shyamal Kanti Guha occupying the said premises after the demise of his sister would not have specifically been mentioned."
Therefore, the property has been transferred for ever to the petitioners or their predecessors free from all encumbrances and for ever. The words ''free from all encumbrances'' has been used in Section 16 of the Land Acquisition Act to denote the vesting in the State Government. Therefore, it can be said with some degree of plausibility that the words ''free from all encumbrances'' take their colour from the same words used in Section 16 of the Land Acquisition Act. This methodology of interpretation was as proved by the Hon''ble Apex Court in the case of Menaka Gandhi Vs. Union of India reported in 1978 SC page 597. The Hon''ble Apex Court termed the methodology as scissor and paste. The Hon''ble Apex Court observed that meaning words ''in public interest'' under Article 19 of the Constitution of India will be applicable to the word used in the statute. This was done with a view to repel the arguments of the petitioners in that case regarding vagueness in the statute.
Since the agreements themselves are law, the law can provide for anything. Significantly, even the petitioners have not challenged the validity of such agreements. They abide by the law. Thus, the powers reserved to itself by the State Government of right of reentry cannot be taken exception of. It will not rob the agreements of their character as outright sale.
As a limb to the aforesaid arguments, counsel for the petitioners further contended that subsequent lease deeds were invalid. Argument is, indeed, attractive. He proceeded to contend that sine the agreement is law, the Government cannot act in defiance of the aforesaid. Anything done in derogation thereof would be null and void.
Reference may be had with advantage to the judgment of the Hon''ble Apex Court in V. K. Ashokan Vs. Assistant Excise Commissioner & others reported in 2009 (14) SCC page 85 in which the Hon''ble Apex Court in paragraph no. 37 has held as under:
"It is a settled principle of interpretation of statute that when an amendment is made to an Act, or when a new enactment is made, Heydon''s rule is often utilized in interpreting the same. See Philips Medical Systems (Cleveland) Inc. v. Indian MRI Diagnostic and Research Ltd. and Anr. AIR 2009 SC 1052. For the purpose of construction of Rule 6(30), as it stands now, the Court is entitled to look to the legislative history for the purpose of finding out as to whether the mischief prior to such amendment is sought to be rectified or not. Applying the Heydon''s rule, we have no other option but to hold that such was the intention on the part of the Rule making authority."
Subsequent lease deed which has been executed by the State Government in favour of the petitioners or their predecessors are inconsequential. A contract cannot abridge, modify or supersede the statute. Thus this Court has no option but to declare the subsequent lease deeds which materially alter the nature and shake the foundation of the contract cannot permit to exist as already held in the forgoing. Agreement dated 20.3.1941 was one of outright sale and same was to be enjoyed in perpetuity. The Government was therefore, denuded of any authority to brun or alter the nature of the agreement. It could not reduce the out right sale to lease or something granted in perpetuity to a term. Therefore, the two lease deeds dated 1.11.1950 and 22.6.1970 executed by the state Government are nonest.
Thus, the only question which remains to be examined is whether the petitioners have committed breach of the agreements dated 20.3.1941 so as to clothe the State Government with authority to reenter the premises in dispute.
Suffice it to say that there exists ample evidence on record that the petitioners have set up their factory for production of mineral wool in 1962. The production was stated in the year 1963. This fact is admitted even by the respondents in clear and certain terms. The District Magistrate has very clearly admitted in his letter dated 3.5.1991 to the State Government that the petitioners had not violated the terms of the agreement and factories have been set up and they are running. Therefore, he recommended that the Government may review its opinion and desist from taking any action or resuming possession of the land in dispute. The agreement dated 22.6.1970 too admits that the factory has already started functioning. Therefore, it is not correct to say that the petitioners have breached the provisions of the agreements. The intransient stand of the State Government despite prohibitory mandamus issued by this Court smacks of arbitrariness and flagrant insubordination and disregard to the supremacy of this Court. This court cannot countenance such a situation. Further it will stymie the rule of law. It will be severe jolt to democracy. The comity jurisdiction existing between the three organs of the State, viz Executive, Legislature and the Judiciary will stand snapped. The Court cannot countenance such a situation. Otherwise too, right of reentry cannot be exercised arbitrarily. The Hon''ble Apex Court in Express News Paper Pvt. Ltd. Vs. Union of India reported in AIR 1986 SC page 872 has held as under:
"The Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on plots nos. 9 and 10, Bahadur shah Zafar Marg demised on perpetual lease by registered leasedeed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under Section 2(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under Subsection (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works & Housing for the enforcement of the alleged right of reentry, if any upon forfeiture of lease due to breach of the terms of the lease."
We have no hesitation therefore, to quash the two orders passed by the State Government i.e the order dated 21.10.1989 and 20.12.1990. Admittedly, the State Government has walked in possession of the property; though illegally. If the State was of the view that it is property of the State, the possession could be taken only in accordance with the provision of Public Premises (Eviction of Unauthorised Occupants) Act 1972 as provided vide judgement dated 13.11.1990 passed in earlier Civil Misc Writ Petition No. Nil of 1990(M/s Durga Enterprises Vs. Principal Secretary, Government of UP). Therefore, the possession on paper is held to be no possession in the eyes of law.
Since the action of the State Government is wholly high handed, reckless and arbitrary, this court is not deprived of the power and authority to restore status quo. This is so even on the analogy of principles enshrined in Section 144 of the Code of Civil Procedure. We have since declared the action of the State Government as null and void. In fact the Hon''ble Apex Court in the case of Bishan Das and others Vs. State of Punjab & others, reported in AIR 1961 SC 1570 has observed in paragraph nos. 11, 12 & 14 as under:
"..........These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the lend by the application of the maxim quicquid plantatur solo, solo credit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State''s Legal Remembrancer. It is well recognised that a suit under s. 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust."
"Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made in 1925 and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a mere trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order."
"..........In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. The State of Himachal Pradesh 1954 CriLJ 1029, the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. The State of Bihar (1953) 4 SCR 1129 this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi''s case (supra), remarkable for their disturbing implications."
Hon''ble Apex Court, accordingly, issued a writ directing the restoration of possession to the petitioners.
For the reasons recorded above, the writ petition is allowed. The impugned orders dated 21.10.1989 and 20.12.1990 are hereby quashed. The respondents are directed not to interfere with the possession of the petitioners and allow the petitioners to use and occupy the premises in question and if the petitioners require change in the nature of user then it shall be done only for the public purpose contained under clause (f) of Section 3 of the Land Acquisition Act.
In the result, the writ petition is allowed with costs.